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NEWARK, NJ - A federal appeals judge ruled on June 19 that the Sayreville School District did not violate the rights of a kindergartner suspended for three days after pointing his finger at his buddies during recess and saying "I'm going to shoot you." The court declared that the school district did not violate the kinder-gartner's free speech, due process, or equal protection rights.

The ruling upheld last year's decision by the U.S. District Court, which had dismissed a lawsuit filed in June 2000 by the kindergartner's parents, Scott and Cassandra Garrick. They sued the Sayre-ville School District after their son was disciplined for playing cops and robbers on the school playground with three schoolmates. During the game, another student overheard the boy say, "I'm going to shoot you," and reported it to the teacher. The school, which had a history of violent threats, immediately suspended the child.

Although the Garricks have since placed their son in a private school, they want the suspension removed from his record, pointing out that students do not relinquish their constitutional right to freedom of speech and expression at school.

The Superintendent of Schools for Sayreville, Dennis Fyffe, called the federal appeals ruling as a "very nice victory for the district." He claimed that the students were not suspended under the "zero tolerance" rule but rather under a general school policy dealing with behavior. John Whitehead, president of the Rutherford Institute, asserted that whether the boys were suspended under zero tolerance or not, school officials overreacted and the action taken by the school was excessive. He argued that the three-day suspension was over-punishment of the four youngsters.

Whitehead maintained that the core issue is the fact that the Garricks were not notified in time and could not attend the suspension hearings. "Zero tolerance" as played out by the school, Whitehead said, reinforces the unconstitutional behavior of "don't ask questions and just throw them [students] out."

Zero tolerance policies have been under public scrutiny with the rise in inappropriate suspensions of very young elementary school students. While public fear of school violence is widespread, incidents of violence are rare. According to Bill Lewis of the New Jersey Education Association (NJEA), the number of children killed in school each year is less that half the number who die from lightning strikes. Additionally, 3,000 children die each year outside of school from violence in their neighborhoods.

The Garricks plan to appeal the decision to the full U.S. 3rd Circuit Court or to the U.S. Supreme Court.

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